ex-ENS, USNR

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     
        


Summary of Service
Prior Service:
Inactive: USNR 19971006 – 19980109 (To commenced OCS trng)       Active:  19980110-19980423 (To accept commission) COG

Period of Service Under Review:
Date of Appointment: 19980424    Age: 23
Years Contracted: Indefinite
Date of Discharge: 19990831      Highest Rank: ENS
Length of Service: Year(s) Month(s) 08 Day(s)
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available
Awards and Decorations (per DD 214):     NONE

Periods of UA/CONF:

NJP:

- 19990217:      Article (False official statement)
         Article (Larceny and wrongful appropriation)
         Article 133 (Conduct unbecoming an officer and a gentleman)
         Awarded: LETTER OF REPRIMAND Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:


NDRB Documentary Review Conducted (date):        20030722
NDRB Documentary Review Docket Number:   ND02-01285
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.







Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:           Service/Medical Record:           Other Records:  

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant contends that the polygraph should not be taken into consideration and her explanation of the events that transpired at the BX should be taken into consideration.
2. The Applicant contends that she was not properly advised about the ramification of her characterization of service upon separation by her chain of command or legal. She further contends that she wrote a resignation letter prior to knowing that the Navy was considering her discharge, and she believes this initiated her discharge.
3. The Applicant contends that her post-service conduct is worthy of consideration for an upgrade.

Decision

Date: 20150311            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 107 (False official statement; 1 specification), Article 121 (Larceny and wrongful appropriation, 1 specification), and Article 133 (Conduct unbecoming an officer and a gentleman, 1 specification). Based on the offense(s) committed and further pending administrative processing, the Applicant chose to submit a written statement, and submit a qualified letter of resignation.

: (Decisional) () . The Applicant contends that the polygraph should not be taken into consideration and her explanation of the events that transpired at the BX should be taken into consideration. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the polygraph should not have been taken into consideration. The Applicant does not contend that she was not fully read her rights or that the test was conducted against her free will. Furthermore, the polygraph was not the sole piece of evidence used against the Applicant that led to her discharge. The record states that the Applicant was initially suspected of shoplifting on 12 January 1999 via closed-circuit cameras monitored by the BX security personnel. The command cooperated with BX security personnel and conducted a thorough investigation, sent the Applicant to XOI, and subsequently to Captains Mast on 17 February 1999. Throughout this process, the Applicant had several opportunities to contest any evidence used against her and prove her innocence. The NDRB examined all of the evidence in the Applicant’s record and did not find any violation of rights or impropriety. Except for her testimony, the Applicant did not submit any new evidence to refute, or mitigate the actions taken by her command. After an exhaustive review of the record, a preponderance of the evidence reviewed supports the conclusion that the Applicant committed misconduct, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

: (Decisional) () . The Applicant contends that she was not properly advised about the ramification of her characterization of service upon separation by her chain of command or legal counsel. She further contends that she wrote a resignation letter prior to knowing that the Navy was considering her discharge, and she believes this initiated her discharge. There is no evidence in the record, nor did the Applicant provide any evidence to indicate she was not properly advised of her rights. The Applicant’s record shows she was advised of her rights on several different occasions. On the NAVPERS 1626/7, the Applicant signed that she did not demand a trial by court-martial and accepted Captains Mast on 17 February 1999. On the same day, the Applicant was advised of her rights to appeal which acknowledged by a signed writing.

Her Commanding Officer, Commander, 562 Flying Squadron stated, “ENS Ford made a mistake and has taken responsibility for her actions. Unfortunately, her demonstrated lack of integrity is incompatible with service as a Naval Aviator/warrior. Therefore I recommend retention on active duty only if the Fleet Support community or any one of the other restricted line communities is willing to give her a second chance.” The record documents at least 3 letters post NJP: 1) ENS Ford’s ltr of 26 Feb 99 [Extracted from the Report of Nonjudicial Punishment letter]; 2) ENS Ford’s statement of 18 Mar 99 [Extracted from the Report of Nonjudicial Punishment letter]; and 3) ENS Ford’s ltr of 2 Jun 99 w/end [Extracted from Chief of Naval Personnel letter]; in which the Applicant exercised her rights. In a letter dated 02 Jul 99, the Chief of Naval Personnel states “Due to the fact that ENS Ford has adjudicated misconduct in her official record, ENS Ford’s request for redesignation will not be staffed by the Navy Personnel Command.” This same letter further states that “Reference (b) notified ENS Ford of the initiation of administrative separation processing. By enclosure (1), ENS Ford submitted a qualified resignation request for a General Discharge in lieu of further administrative separation processing.” Ref (b) was listed as CHNAVPERS ltr 1920 Ser 834D/873 of 27 May 99 and enclosure (1) was listed as ENS Ford’s ltr of 2 Jun 99 w/end. The Applicant was subsequently discharged 31 August 1999.

There is nothing in the record, nor has the Applicant produced any evidence to show that any of her rights were violated. On the contrary, the record shows the Applicant accepted NJP, was advised of her rights to appeal, wrote at least one statement to her Commanding Officer, submitted a request for redesignation, and submitted a qualified resignation request for a General Discharge. The Board found that all the actions of her command from the initial investigation through the discharge process were proper and in accordance with Naval standards. Relief denied.

: (Decisional) () . The Applicant contends that her post-service conduct is worthy of consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant provided a statement on her DD Form 293, a letter from her husband, and a resume on her behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct warrants an upgrade on equity grounds. To warrant an upgrade, the Applicant’s post-service efforts needed to be more encompassing. The characterization of service received was appropriate considering the length of service and USN violations. The Board determined that the documentation submitted by the Applicant does not demonstrate equitable post-service grounds for an upgrade. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . The Applicant is directed to the Addendum for additional information.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023